Complainant

Respondent

Parties

Tracy  McGann

Ers Genomics Limited

Complainant

Respondent

Representatives

Adrian Twomey Jacob and Twomey Solicitors

Rosemary Mallon B.L. instructed by Siobhra Rush Lewis Silkin

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00054712-001

26/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00054712-002

26/01/2023

The Complainant commenced her employment with the Respondent on the 1st of August 2018 and resigned with effect from the 16th of January 2023. At the time of her resignation the Complainant was Head of Finance.

The Complainant made three claims:

Discriminatory Constructive Dismissal

Gender Discrimination

Victimisation.

The basis of all of the claims was gender discrimination/victimisation contrary to the Employment Equality Acts 1998-2015.

A detailed written submission was delivered by the Complainant’s solicitor the main points were as follows:

The Complainant

The Complainant commenced employment with the Respondent on 1 August 2018 as Manager, Finance and Accounting (later Head of Finance). Her employment was initially on a part-time basis. She later became a fulltime employee of the company. The Complainant performed well in her role and was promoted to Head of Finance during 2020. At the time of her constructive discriminatory dismissal on 16 January 2023, she earned a salary of €100,000 gross plus a bonus of up to 15% of basic salary and a company pension contribution of 10%.

The Complainant resigned from her employment having been the victim of discrimination based on her gender, victimisation and, ultimately, following the company’s failure to address her grievances in relation to same.

The Complainant submitted the instant complaint to the Workplace Relations Commission (WRC) on 26 January 2023.

The Respondent

The Respondent, ERS Genomics Limited, is a biotechnology company with a registered office at 88 Harcourt Street, Dublin 2.  The company was formed to provide non-exclusive licences to access patents covering the foundational CRISPR/Cas9 intellectual property co-owned by [named individual].

Initial Equality Issues: Exclusion and Pay-Related Discrimination

As noted above, the Complainant commenced employment with the Respondent on 1 August 2018. The Complainant was initially contracted to work part-time for 20 hours per week as a Manager, Accounting and Finance. Her gross annual salary at that time was €45,000. The Complainant performed well in her role and received excellent performance reviews. She always attended Board meetings of the Respondent alongside the Directors. It should be noted that when the Complainant commenced employment, she was the only female employee and the only woman to attend board meetings. When board meetings ended, the Complainant’s colleagues, who were all male, would go to dinner together. The Complainant was not included or invited. Rather, they would simply say goodbye to her. She raised the matter at the time and was told not to worry about it.

As the Respondent company grew and expanded, so did the Complainant’s range of duties and hours of work. The Complainant’s hours were increased initially from 20 hours per week to 30 hours per week on 1 January 2020 and her salary was increased on a pro rata basis. The Complainant’s job title was changed to Head of Finance during 2020.

At the Complainant’s performance review that year she was afforded a 5% company contribution to her PRSA on top of her basic salary. The Complainant later learned while processing the payroll, that a [Named] male colleague received a 10% increase. The Complainant’s role became full-time with effect from 1 January 2021. Following her salary increase in 2021, the Complainant became aware, again while carrying out her duties, that she had received a lower salary increase than her male colleagues (for the second consecutive year). Out of 5 colleagues, of whom the Complainant was the only female, the highest salary increase given was 50% while the smallest salary increase received by a male colleague was 12.8%.

The Complainant raised her concerns in relation to this matter with Mr. Eric Rhodes, CEO. The matter was discussed with the board members; two of whom are owners of the company. Both men were annoyed that the Complainant referred to “company information” in raising her concerns. Mr. Shaun Foy, Owner/Director, informed the Complainant on 16 February 2021 that he would review her request and revert to her by 30 June 2021. The Respondent hired an external HR company to carry out research on remuneration rates for a Head of Finance role. Eventually, in September 2021, the Respondent agreed to a salary increase for the Complainant bringing her salary to €100,000 gross which was backdated to 1 January 2021.

The Complainant’s workload increased significantly in 2021. On top of her existing duties, she was assigned the duties of the Respondent’s US Financial Consultant after the said consultant left the company. This was despite monies having been budgeted by the company for 2021 and 2022 to hire a replacement US Financial Consultant.

Request to Work Part-Time & Exclusion from Board Meetings

By email dated the 27th of May 2022, the Complainant made a request to Mr. Eric Rhodes, CEO, that she be permitted to revert to working part-time on a 3 day per week. She discussed a scenario with Mr. Rhodes in which:

- The Complainant would reduce her working hours to 3 days per week;

- A part-time Accounts Assistant would be hired;

- She would delegate to the Accounts Assistant those aspects of her work that did not require a person of her seniority to perform.

The effect of these changes would be cost neutral or advantageous to the company, whilst  the Complainant would be able to return to part-time working. Mr. Rhodes responded by telling the Complainant that he thought “we can make this work”.

After further discussion about the matter, the Complainant was informed that she could proceed with hiring a part-time Accounts Assistant basis to support her. From that month on, in a complete departure from previous practice, the Complainant was excluded from Board meetings. On 24 June 2022, Mr Rhodes told her that the company would not proceed with the search for a part-time Accounts Assistant at that time. Her request to work part-time had effectively been declined without any proper or reasonable consideration being given to same, in flagrant contravention of the Code of Practice on Access to Part-Time Working (SI 8/2006).

The Adjudication Officer is asked to note that the Complainant’s male colleague, [Name and Title Provided]:

- was hired on a part-time basis in April 2022;

- became full-time in October 2022;

- subsequently applied to move back to part-time working with effect from September

2023;

-  had his application approved by January 2023.

The treatment of an application to work part-time by this male colleague was in stark contrast to the treatment of the Complainant’s application. Whilst the male colleague’s application was approved, the Complainant was subjected to a shoddy attempted demotion and constructive discriminatory dismissal.

“Redundancy” of Business Analyst

In or around Q4 of 2022, the company terminated the employment of [name and title of employee provided] due to a purported “redundancy”. The [employee] had requested a pay increase earlier in the year. After he made his request, the Complainant was informed that the Respondent was going to terminate his employment as it was unhappy that he had sought a pay increase. The Complainant told Mr. Rhodes that the company could not dismiss an employee for asking for a pay increase. Nonetheless, [the employee] was subsequently dismissed due to a purported “redundancy”. Following his departure, the Complainant was asked to take on some of his duties. She reluctantly agreed to do so, in circumstances where she herself had asked to revert to part-time working.

Demotion and Resignation

In October 2022, there was a board meeting. The Complainant was not invited to attend. The following evening, after the shareholders had left, a number of colleagues from the company attended at a company dinner. The Complainant was in attendance as was Mr. Rhodes. At one point in the evening, the Complainant left the table to go to the bathroom. Mr. Rhodes stopped her and told her that the party was out of red wine and indicated that she should get some. She was shocked at being treated like a waitress and told him that she was not there in such a capacity.

On Monday, 14 November 2022, during the Complainant’s weekly Zoom call with Mr. Rhodes, that gentleman informed the Complainant that the Respondent was going to hire a finance professional with more international and US experience. This new “Vice President of Finance” would work full-time, and the Complainant could move to the part-time Accounts Assistant role; the vacancy the Complainant was looking to fill earlier in the year to support her. In short, the Respondent was now proposing to demote the Complainant to a more junior position and reassign her higher-level duties to a new hire who would effectively replace her in the most senior finance position in the company.

The Complainant was shocked and asked if the Respondent really expected her to take the

junior role and do the “s..t part of the job”. Mr. Rhodes responded by saying “yes, do the s..t

part of the role”. He informed her that the company had already spoken with a recruitment agency in relation to this “new” senior role and further informed her that she could “apply” for the position if she wanted. The Complainant was astonished that she was effectively being told that she now had to apply for what was, in essence, her job or face a demotion. She was deeply upset and informed Mr. Rhodes that she suspected that the Respondent was trying to get rid of her. She pointed out that she had been excluded from Board meetings since May 2022, when she had asked to work part-time. Mr. Rhodes cupped his hand around his mouth, feigning to whisper, and told her to “start looking for a job”.

The Complainant told Mr. Rhodes that if they wanted her to leave the company that they should make her an offer. Mr Rhodes replied that they would give her a much better offer than what her former colleague, the Business Analyst received. In spite of this event, Mr. Rhodes noted that the Complainant did an excellent job and that they were all happy with the work she does. The Complainant advised him that she would continue on in a full-time capacity. On or about 15 November 2022 there was a standard bi-weekly meeting. Mr. Rhodes asked all of those in attendance how they were getting on, save for the Complainant.

On 17 November 2023, the Complainant noticed on LinkedIn that the role for a Vice President of Finance within the Respondent had been advertised. As the Complainant reviewed the duties of the role advertised, she noticed that it described the same role that she was then performing. She was deeply upset that the Respondent had advertised her role.

The Complainant had a further call with Mr. Rhodes on 28 November 2022 when he told her that he did not have any proposal to make to her. She told him that the situation was impacting negatively on her mental and physical health. Mr. Rhodes emailed the Complainant on Saturday, 10 December 2022. He informed her that there was no need for the Respondent to make any offer to her as the Respondent was not trying to have her exit the company. He reiterated that the Respondent were looking to take on a Vice President of Finance and that she could apply for that position. If she was not successful, he noted that she could apply for the junior part-time position supporting the VP of Finance.

During a further call with Mr. Rhodes on Monday, 12 December 2022, the Complainant expressed her concerns regarding the manner in which she was being treated, emphasising the fact that the company was seeking to hire a “Vice President of Finance” to essentially replace her. Mr. Rhodes agreed that the Vice President of Finance Role and the Head of Finance role were very similar and said that he and another Irish director had argued with the owners (Mr. Shaun Foy and Dr. Rodger Novak) about the matter. Mr. Rhodes went on to state that the Respondent would permit the Complainant to go part-time from January 2023 but only by accepting a significant demotion and then taking a pay cut in August 2023. Mr. Rhodes admitted to the Complainant that that Mr. Shaun Foy and Dr. Rodger Novak, shareholders and Directors of the Respondent, were now changing their approach towards the Complainant by allowing her to work part-time but had, essentially, qualified this by seeking to hire someone to fill her position while she was still in the role.

The Complainant instructed her solicitors to write to the company setting out her grievances and same occurred on 3 January 2023. The Respondent acknowledged receipt of same on 3 January 2023. However, by 16 January 2023 no meaningful response had been received, the Respondent had failed to follow its own grievance procedure and it had made no proposals in terms of resolving the matter. Shockingly, however, Mr. Rhodes’ Personal Assistant, did comment to the Complainant that “it will be so sad when you are gone”.

As a result, on 16 January 2023, the Complainant resigned with immediate effect in circumstances amounting to constructive discriminatory dismissal. Mr. Rhodes acknowledged her resignation by email on that same day. She later received a telephone call from Mr. Derek O’Reilly, a director of the company, who commiserated with her and said that he was going through a similar situation where people had wanted him gone from his employment by another company.

The Complainant later found alternative employment and commenced same on 1 March 2023. She was initially paid €75,000 gross per annum in her new job (although same increased to €90,000 per annum on 1 August 2023) and works 4 days per week.

Employment Equality Law and Discrimination

Domestic law on gender discrimination in employment was summarised by Marian Duffy, Equality Officer, in the case of Dempsey v NUI Galway, DEC-E2014-039 as follows:

“Section 6(1) of the of the Employment Equality Acts 1998 and 2011 provides:

"….. discrimination shall be taken to occur –

a person is treated less favourably than another person is, has been or would be

treated in a comparable situation on any of the grounds specified in subsection (2)

(in this Act referred to as the ‘discriminatory grounds’)"

Section 6(2)(g) provides that as between any two persons, the discriminatory grounds

are, inter alia:

“(a) that one is a woman and the other is a man (in this Act referred to as ‘‘the

gender ground’’)”

and

“Section 8 provides:

“(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee

and a provider of agency work shall not discriminate against an agency worker.”

(4) A person who is an employer shall not, in relation to employees or

employment—

(a) have rules or instructions which would result in discrimination against

an employee or class of employees in relation to any of the matters

specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely

to result in any such discrimination.”

(6) “Without prejudice to the generality of subsection (1), an employer shall be

taken to discriminate against an employee or prospective employee in

relation to conditions of employment if, on any of the discriminatory grounds,

the employer does not offer or afford to that employee or prospective

employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension

rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time,

transfers, lay-offs, redundancies, dismissals and disciplinary

measures, as the employer offers or affords to another person or class

of persons, where the circumstances in which both such persons or

classes are or would be employed are not materially different.”

Burden of Proof

The Employment Equality Act 1998 (as amended) addresses the issue of the burden of proof

as follows:

“85A. (1) Where in any proceedings facts are established by or on behalf of a

complainant from which it may be presumed that there has been discrimination in

relation to him or her, it is for the respondent to prove the contrary.”

In the case of the Southern Health Board v Teresa Mitchell, DEE011, the Labour Court considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out. It stated that the complainant must:

“…establish facts from which it may be presumed that the principle of equal treatment

has not been applied to them. This indicates that a Claimant must prove, on the

balance of probabilities, the primary facts on which they rely in seeking to raise a

presumption of unlawful discrimination. It is only if these primary facts are established

to the satisfaction of the Court, and they are regarded by the Court as being of sufficient

significance to raise a presumption of discrimination, that the onus shifts to the

respondent to prove that there was no infringement of the principle of equal treatment.”

In Melbury Developments v Arturs Valpeters, EDA0917, the Labour Court stated:

“Section 85A of the Act provides for the allocation of the probative burden in cases

within its ambit. This requires that the Complainant must first establish facts from which

discrimination may be inferred. What those facts are will vary from case to case and

there is no closed category of facts which can be relied upon. All that is required is that

they be of sufficient significance to raise a presumption of discrimination.”

The issue of the burden of proof was considered in detail by the Equality Tribunal in the case of Coughlan v Cumann Luathchleas Gael Chorcai, DEC-E2013-081 (2013) in which it was decided that:

“Where a prima facie case is made out, the onus shifts to the Respondent to prove the

absence of discrimination. This requires the Respondent to show a complete

dissonance between the gender of the Complainant and the impugned act or omission

alleged to constitute discrimination. Thus, in Wong v Igen Ltd and others (a decision

of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where

the Respondent fails to show that the discriminatory ground was anything other than a

trivial influence in the impugned decision the complaint will be made out.”

Access to Part-Time Working

The law has long regarded failure on the part of employers to reasonably consider applications for part-time working arrangements by women to constitute indirect discrimination on the gender ground because an inability to work part-time more often has an adverse impact on women. It was against that background that the Code of Practice on Access to Part-Time Work (SI 8/2006, Industrial Relations Act 1990 (Code of Practice on Access to Part-Time Working)(Declaration) Order 2006) was introduced by way of statutory instrument in 2006. The Code of Practice provides that:

“Requests by employees to (a) transfer from full-time to part-time work, and (b) transfer

from part-time to full-time work or to increase their working time should the opportunity

arise.

The facility to change the existing hours of work of employees is a matter to be agreed

between the employer and the employee, rather than a statutory entitlement. Best

practice indicates that employers should treat such requests seriously and where

possible explore with their employees if and how requests can be accommodated or

how such transfers can be made.

In this regard employers should consider establishing a procedure allowing for (i)

application, (ii) relevant consultation and discussion, (iii) decision and response, (iv)

managing the outcome (implementation or refusal).

Recommended best practice indicates that such a procedure should provide for the

following elements:

- An application from the applicant outlining the reasons for the request to transfer

from full-time to part-time working, indicating whether the request is of a temporary

or permanent nature.

- A reasonable timeframe to consider the request.

- In considering the application both the employer and employee should take

account of all factors both relevant to the organisation and personal to the

applicant. Relevant factors may include:

1. The personal and family needs of the applicant;

2. The number of employees already availing of part-time work;

3. Additional resources required to meet part-time cover and other

business/operational needs of the organisation and implications of same;

4. The urgency of the request;

5. The period of time covered by the request;

6. The employee’s legal rights and entitlements;

7. The equal opportunities policy of the organisation;

8. How the applicant’s proposed revised hours will fit with the tasks of his/her

job and how these tasks will be performed during the period of part-time

work;

9. The implications, if any, for the applicant’s conditions of employment;

10. The effect, if any, on the staffing needs of the organisation;

11. Procedure for reviewing the arrangement.

- The employer should issue a decision to the applicant. If the application is

successful, details of how the arrangement will work should be discussed with the

applicant (and other work colleagues if appropriate) and agreed. It is useful to draw

up an agreement, signed by the parties, detailing any changes to terms and

conditions of employment, for example income, annual leave, pension

entitlements etc.

- The consideration by an employer of a request for part-time work would have

regard to the business needs of the organisation.

- If the application is refused (or deferred) the grounds for doing so should be made

clear to the applicant.

- The applicant should have recourse to an appeals mechanism in the event that a

mutually satisfactory solution is not reached, for example through the normal

established grievance procedures in the organisation.

It should be noted that part-time working may not be appropriate to particular situations

and an applicant should be prepared to accept a refusal, if there are good reasons for

it. An employer may refuse a request for part-time working if it is satisfied that such

arrangements would have an adverse effect on the operation of the business, lead to

staffing difficulties or other relevant factors which might impact negatively on the

business.”

It is submitted that:

a. The Respondent indirectly discriminated against the Complainant on the gender ground

by failing to deal with her application to work part-time adequately;

b. Directly discriminated against the Complainant by refusing her application to work part-time.

whilst granting a similar application from a male colleague; and

c. Failed to comply with the requirements of the Code of Practice.

Victimisation

Section 74(2) of the Employment Equality Act 1998 (as amended) states that:

“For the purposes of this Part victimisation occurs where dismissal or other adverse

treatment of an employee by his or her employer occurs as a reaction to —

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for

any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal

Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this

Act or the said Act of 2000 or which was unlawful under any such repealed

enactment, or

(g) an employee having given notice of an intention to take any of the actions

mentioned in the preceding paragraphs.”

Constructive Dismissal & the Law: The “Contract” and “Reasonableness” Tests

In the case of A Cleaner v A Cleaning Company, ADJ-00019022, the Adjudication Officer (Niamh O’Carroll BL) summarised the law relating to constructive dismissal (in the context of an unfair dismissal claim) in the following manner:

“It is firmly established that two tests govern a claim relating to constructive dismissal.

It is well settled from judicial precedent and determinations from e.g. the Labour Court

and the WRC (and previously in determinations of the Employment Appeals Tribunal)

that what is reasonable is pre-eminently a question of fact and degree to be decided

having regard to all the circumstances of the particular case.

Section 1 of the Act contemplates two circumstances in which a resignation may be

considered a constructive dismissal. This arises where the employer’s conduct amounts

to a repudiatory breach of the contract of employment and in such circumstances the

employee would be “entitled” to resign her position. This is generally referred to as the

“contract test”. This has been held to require that an employer be “guilty of conduct which

is a significant breach going to the root of the contract of employment, or which shows

that the employer no longer intends to be bound by one or more of the essential terms

of the contract, then the employee is entitled to treat himself as discharged from any

further performance” as was held in the oft-cited authority from England & Wales of

Western Excavating (ECC) Ltd v Sharp.

Secondly, there is an additional reasonableness test which may be relied upon as either

an alternative to the contract test or in combination with that test. This test asks whether

the employer conducted his or her affairs in relation to the employee so unreasonably

that the employee cannot fairly be expected to put up with it any longer, and if so, she

is justified in leaving.”

In Berber v Dunnes Stores, [2009] IESC 10, the Supreme Court held that:

“There is implied in a contract of employment a mutual obligation that the employer and

the employee will not without reasonable and proper cause conduct themselves in a

manner likely to destroy or seriously damage the relationship of confidence and trust

between them. The term is implied by law and is incident to all contracts of employment

unless expressly excluded. The term imposes reciprocal duties on the employer and the

employee. In assessing whether there has been a breach by the employer what is

significant is the impact of the employer’s behaviour on the employee rather than what

the employer intended. Having regard to the mutuality of the obligation the impact of an

employee’s behaviour is also relevant. The test is an objective one: if conduct objectively

considered is likely to cause serious damage to the relationship between employer and

employee a breach of the implied obligation may arise. Malik v Bank of Credit and

Commerce International S.A. [1996] I.C.R. 406.”

In Lewis v Motorworld Garages Limited [1986] I.C.R. 157 Browne-Wilkinson J. summarised the law as follows:-

“1. In order to prove that he has suffered constructive dismissal an employee who

leaves his employment must prove that he did so as a result of a breach of contract

by his employer, which shows that the employer no longer intends to be bound by

an essential term of the contract: see Western Excavating (E.C.C.) Limited v

Sharp [1978] I.C.R. 221.

2. However, there are normally implied in a contract of employment mutual rights and

obligations of trust and confidence. A breach of this implied term may justify the

employee in leaving and claiming that he has been constructively dismissed: see

Post Office v Roberts [1980] I.R.L.R. 347 and Woods v W.M. Car Services

(Peterborough) Limited [1981] I.C.R. 666, 670 per Browne-Wilkinson J.

3. The breach of this implied obligation of trust and confidence may consist of a

series of actions on the part of the employer which cumulatively amount to a

breach of the term, though each individual incident may not do so. In particular in

such a case the last action of the employer which leads to the employee leaving

need not itself be a breach of contract; the question is, does the cumulative series

of acts taken together amount to a breach of the implied term. See Woods v W.M.

Car Services (Peterborough) Limited [1981] 1 C.R. 666. This is the ‘last straw’

situation.”

As to the “last straw” it was held in Omilaju v Waltham Forest London Borough Council [2005] 1 All. E.R. 75 that the quality that a “last straw” had to possess was thatit was an act in a series whose cumulative effect amounted to a breach of the impliedterm. The essential quality of that act was that, when taken in conjunction with the earlieracts on which an employee relied, it amounted to a breach of the implied term of trustand confidence.

As to whether conduct amounts to a repudiation of the contract the ordinary law of contract applies: the cumulative effect of the acts complained of must be such as to indicate that a party, in this case the employer, had repudiated its contract. Brown vMerchant Ferries Limited [1998] I.R.L.R. 682. It had earlier been held in Woods vW.M. Car Services (Peterborough) Limited [1981] I.R.L.R. 347 by Browne-Wilkinson J. following Courtaulds Northern Textiles Limited v Andrew [1979] I.R.L.R. 84 that

any breach of the implied term that the employers will not, without reasonable and proper cause, conduct themselves in the manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee was a fundamental breach amounting to a repudiation since it necessarily went to the root of the contract. This broad statement was not accepted by the Court of Appeal in Bliss vSouth East Thames Regional Health Authority [1985] I.R.L.R. 308. Nor was itaccepted by Douglas Brodie in an article in the Industrial Law Journal, Volume 25, No. 2 at p.121 which article was referred to with approval in both Malik v Bank of Creditand Commerce International and in Browne v Merchant Ferries Limited.

It must not be forgotten, however, that the implied term applies to both the employer and

the employee. Thus in Woods v W.M. Car Services (Peterborough) Limited [1981] I.C.R. 666 Browne-Wilkinson J. said:-

“In our view it is clearly established that there is implied in a contract of

employment a term that the employers will not, without reasonable and proper

cause, conduct themselves in a manner calculated or likely to destroy or seriously

damage the relationship of confidence and trust between the employer and

employee: Courtaulds Northern Textiles Limited v Andrew [1979] I.R.L.R. 84.

To constitute a breach of this implied term it is not necessary to show that the

employer intended any repudiation of the contract; the Tribunal’s function is to look

at the employer’s conduct as a whole and determine whether it is such that its

effect, judged reasonably and sensibly, is such that the employee cannot be

expected to put up with it: see British Aircraft Corporation Limited v Austin

[1978] I.R.L.R. 332 and Post Office v Roberts [1980] I.R.L.R. 347. The conduct

of the parties has to be looked at as a whole and its cumulative impact assessed;

Post Office v Roberts.

… In relation to the test the following matters are to be noted:-

1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked

at.

4. The conduct of the employer complained of must be unreasonable and without

proper cause and its effect on the employee must be judged objectively,

reasonably and sensibly in order to determine if it is such that the employee cannot

be expected to put up with it.”

Constructive Dismissal: Internal Grievance Procedure

In Bidvest Noonan v Iosif, UDD2265, the Labour Court stated that normally a Complainant

is:

“… expected to demonstrate that he/she brought the issue to the employer’s attention

before resigning (e.g. through the employer’s formal grievance procedure) but that the

employer failed to address the problem or did so only in an unsatisfactory manner.”

Compensation

In the case of Brennan v BOM Scoil Mhuire agus Iosaf Junior School, ADJ-00018053, the Adjudication Officer decided that the promotion process for the position of principal was tainted with discrimination on gender grounds, where a male with lesser qualifications and experience was promoted to the position ahead of a female who had superior qualifications and experience. In deciding the amount of compensation to be awarded the Adjudication Officernoted that:

“The maximum compensation that can be awarded is set at 104 weeks remuneration

– in the instant case €124,664. In considering the remedy, I have had regard to the

principles set out in Von Colson and Kamann v Land Nordhein-Westfalen, 1984

ECR 1819 and note the requirement for compensation that is effective, proportionate

and dissuasive – the sanction is required to have a real deterrent effect. I require the

respondent to pay the claimant compensation of 78 weeks remuneration amounting to

€93,498 for this breach of her rights under the Act.”

Conclusion

The Complainant submits as follows:

a. She was treated in a manner that was discriminatory on the gender ground after board

meetings at a time when she attended at them.

b. She was discriminated against on the ground of gender in relation to pay when she was

afforded pay increases that did not reflect increases awarded to male colleagues

c. She complained about the pay-related discrimination referred to above and did eventually receive a pay increase, but the male owners of the company were angered by her having done so and her workload was increased.

d. The Respondent indirectly discriminated against the Complainant on the gender ground by failing to deal with her application to work part-time of May 2022 adequately.

e. The Respondent directly discriminated against the Complainant by refusing her application to work part-time whilst granting a similar application from a male colleague.

f. The Respondent failed to comply with the requirements of the Code of Practice.

g. The Complainant was punished for having sought equal pay increases and for requesting part-time working by being excluded from meetings that she previously attended, by having her workload increased again  and by being treated as if she was a waitress at a company social event.

h. Thereafter, the Complainant was constructively dismissed in circumstances that were inherently discriminatory when she was informed that a “new” position was being created above her in the organisation (a position that was effectively a re-labelling of her own) and that she could apply for a more junior position dealing with the “s..t” aspects of the job. At the same time, Mr. Rhodes told her that she should be looking for another job.

i. The Complainant’s job was advertised online by the Company while she still held that position.

j. The Complainant had her grievances communicated to the Company by her solicitors. The Company, however, took no action in relation to same and the Complainant had no option other than to resign in circumstances that amounted to constructive discriminatory dismissal.

Following the conclusion of the evidence, Mr. Twomey Solicitor, on behalf of the Complainant made a closing submission which is referred to in the Findings Section below.

A detailed written submission was delivered by the Respondent before the Complainant’s submissions were received the main points were as follows:

INTRODUCTION

1. The Claimant is a former employee of the Respondent. She has instituted a number of claims

against the Respondent.

2. The Claimant alleges that she suffered from a discriminatory dismissal on the gender ground. She also alleges that she was discriminated against on the grounds of her gender in respect of her conditions of employment and that she was victimised.

3. At the time of writing these submissions the Claimant has not provided any written submissions

to the Respondent, despite being called on to do so by the Respondent’s solicitor. Furthermore,

the aforementioned claim form has no narrative or detail in relation to the claims. Consequently,

the Respondent is entirely at a loss as to understand what, in fact, the allegations of “victimisation” and discrimination in respect of “conditions of employment” are. The Respondent must reserve the right to raise further and better particulars of its defence in relation to these aspects of the claim after receipt of the Claimant’s submissions and hearing her direct evidence.

FACTS

4. The Claimant commenced working with the Respondent in 2018 in the role of Finance and Accounting Manager. The Claimant’s role was initially part time (20 hours a week). Her hours increased over time, and ultimately she moved into a full time work arrangement. At that stage the Claimant was paid €95,000 gross per annum and her title was Head of Finance.

5. The Claimant raised concerns about her rate of pay in or around January 2021. She was concerned that male employees were paid more. The Claimant had no male comparator, as she was the only employee who worked in Finance. The other employees to whom she referred, had sales roles. However, the Respondent considered it appropriate to investigate and address her concerns. External HR Consultants were engaged to consider the matter. The external HR consultants informed the Respondent that the Claimant’s role corresponded with a Financial Controller, for which the salary range in similar sized companies in Ireland, was between €90,000 and €110,000. As a result of this advice, the Claimant’s salary was increased from €95,000 to €100,000 per annum.

6. Approximately 18 months passed during which time the Claimant continued to work for the Respondent without any issue. In or around the end of May 2022 the Claimant informed Mr Eric Rhodes (CEO) that she wished to scale back in terms of her work, for personal reasons. She indicated that she was seeking a reduction in her working week. She suggested that another person could be taken on to do some work on a part-time basis, and that this could be done in such a way as to be cost neutral to the Respondent.

7. It is important to note that prior to the Claimant raising this issue, there had been a discussion at Board level as to whether there was a need for a more senior/experienced person in the Finance department of the Respondent. The business was expanding and there was a concern that the Respondent needed a person in Finance with more international experience.

8. In or around October 2022, the Respondent engaged the services of a consultancy company –

Centralis - who provided an individual on a part time basis to help the Claimant from in or around November 2022. The intention was that when that individual had been fully trained in by the Claimant, she would be able to reduce her hours.

9. In or around the end of October/November 2022 Mr Rhodes had another conversation with the

Claimant. He explained to her that the Board of Directors had considered her request to work part-time and that the Board were of the view that there was a need for a full-time role in Finance. Mr Rhodes also explained that the Board had decided that they needed someone with greater experience in the Finance function i.e. a Director of Finance. However, Mr Rhodes indicated that the Claimant could work part-time with that individual. The Claimant said that “thissounds like you are trying to get rid of me”. Mr Rhodes stated that this was not the case. The Claimant on a number of occasions stated “you’re leaving me with the s..t job” or words to that effect.

10. The Claimant later asked Mr Rhodes to “make me an offer”. Mr Rhodes refused to do so, and

indicated clearly to the Claimant that the Respondent was not trying to remove her from the business. It was made clear to the Claimant that she could apply for the new full time Finance role. She was also told that alternatively, she could work part-time and assist this person. Mr Rhodes also suggested that the Claimant could work in that role on her full-time salary until August 2023 and thereafter she could have a discussion about the future with the person occupying the new Finance role at that stage.

11. By letter dated the 3rd of January 2023 the Claimant’s solicitors wrote to the Respondent making various allegations and stating that the Claimant required her concerns to be addressed under the Company’s grievance procedure.

12. It must be accepted that it is highly unusual for an employee to raise an internal grievance through a solicitor’s letter, particularly one that makes various legal arguments and includes a Data Subject Access Request. It was reasonable for the Respondent to seek legal advice on how to appropriately respond. However, less than 2 weeks later, before the Respondent had a chance to respond, the Claimant resigned (again through a letter from her solicitor). The letter, dated the 16th of January 2023 states:

“We note that you acknowledged receipt of our letter of 3 January 2023 by email that

same day. We also note, with considerable disappointment, that neither we nor our

client have heard anything further from you or the company in relation to the matter. In

particular, we note that no action has been taken in relation to our client’s grievances.

Rather, the company appears to have taken the view that it would simply continue to

ignore our client’s grievances in the hope that she would resign. We note, in that regard,

that your personal assistant, Ms Janice Valentine, has recently remarked to our client

that “it will be so sad when you are gone”.

Given the company's repudiatory breach of our client’s contract, the company’s utterly

unreasonable treatment of her and the company’s failure to address her grievances,

she has concluded that she has no option other than to resign with immediate effect.

You might please accept this letter as notification of her resignation with effect from the

date of same. We trust that our client will be paid any and all monies due and owing to

her on or before the next applicable payroll date.

Please note that we continue to await your response to our client’s data subject access

request.”

13. Mr Rhodes was surprised by the Claimant’s resignation. He emailed the Claimant on receipt of

same on the 16th of January stating:

“Hi Tracy,

Just received your resignation from your lawyer. We were working on this and because

you had obtained a solicitor we felt compelled to obtain one and speak to them before

reaching out. It is all very confusing and I understand your frustration. It was our hope

to have our solicitor speak to yours as the first step this week. I don't quite know where

this leaves us.

I arrive into Dublin this afternoon and should have more info tomorrow.”

14. The Claimant replied that day as follows:

“Thank you for your e-mail but I believe that the position is quite clear.

I asked to work part time. In response, I was told to look for another job and that I would

be paid an exit package. I was then then told that I was to be demoted instead or could

leave my employment. I was not willing to accept a demotion and my solicitor wrote to

the company setting out my grievances. The company acknowledged receipt of that

letter but did not address my grievances. I have been advised that the company has

repudiated my contract of employment. I also believe that it has treated me dreadfully.

In the circumstances, I had no option other than to resign and I instructed my solicitor

to communicate my resignation to you earlier today.

I wish you and the company every success in the future but feel bitterly disappointed

about the manner in which I have been treated. I intend to instruct my solicitor to initiate

a complaint to the WRC on my behalf.”

15. It is quite clear from the Claimant’s response that she had no interest in waiting for the Respondent to respond to the grievance set out in her solicitor’s letter. Her decision to resign was premature and unreasonable. The reality is that the Claimant entirely failed to utilise the grievance procedure. A reasonable explanation was proffered to the Claimant for the delay of a mere 13 days since her solicitor’s letter was received. Despite being provided with this explanation the Claimant’s persisted with her decision to resign. Her actions were not reasonable.

No Prima Facia Case and No Comparators.

16. The Claimant alleges that she has been discriminated against on the basis of gender and she has filed a claim pursuant to section 77 of the Employment Equality Acts 1998-2022 (the "Employment Equality Acts").

17. The Claimant has not and will not be able to establish facts from which it can be presumed that

there has been discrimination on the grounds of gender.

18. The Claimant has failed to shift the burden of proof to the Respondent in respect of her claims of discrimination as set out in the Complaint form or on the basis of what the Respondent understands her claim to be, based on her two solicitor’s letters.

19. The Claimant has presented no facts which show that she has been or would be treated less favourably than another person employed by the Respondent on the grounds of gender.

Section 85A of the Employment Equality Acts 1998 – 2022 provides:

'(1) Where in any proceedings facts are established by or on behalf of a complainant

from which it may be presumed that there has been discrimination in relation to him or

her, it is for the respondent to prove the contrary.'

20. These are key requirements in order to shift the burden of proof to the Respondent as set out in the Labour Court decision in Southern Health Board v Mitchell DEE 1/2001 (reported at

[2001] E.L.R. 201):

“The first requirement is that the claimant must establish facts from which it may be

presumed that the principle of equal treatment has not been applied to them. This

indicates that a claimant must prove, on the balance of probabilities, the primary facts

on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they

are regarded by the Court as being of sufficient significance to raise a presumption of

discrimination, that the onus shifts to the Respondent to prove that there is no

infringement of the principle of equal treatment.”

21. With the greatest of respect to the Claimant her claims appear to be filled with assumptions and

presumptions. The case of Melbury Developments Limited is one of the leading authorities on the issue of the burden of proof in equality cases. It was held in that case that “Merespeculation or assertions, unsupported by evidence, cannot be elevated to a factual basis uponwhich an inference of discrimination can be drawn.” In a later case (applying MelburyDevelopments Limited) it was held that it is "well settled law that mere assertion cannot beelevated to the status of evidence".

22. It is for the Claimant to prove that the there was a link between the alleged behaviour complained of and a protected ground. The Labour Court in the case of Rescon Limited vScanlan  EDA 085/2008 held:

"In this case the Complainant has adduced no evidence to establish a nexus between

his gender and the Respondent's failure to offer him the disputed post other than that a

woman was appointed and he was not. In the Court's view a mere difference in gender

and a difference in treatment, in the sense that the Comparator was appointed and the

Complainant was not, could never in itself provide a sufficient evidential basis upon

which to raise a presumption of discrimination."

23. In the case of Meehan v Leitrim County Council  DEC – 2006 – 014 the Complainant alleged that he was treated less favourably than his younger colleagues in relation to promotion. The Equality Officer held in relation to interviews and the selection process that it was "not of course the Tribunal's

function to identify the most successful candidate but to examine whether the selection was tainted by age discrimination." It was held that the bare fact that a successful candidate isyounger than the Complainant is not sufficient to shift the burden of evidential proof.

24. In the Melbury Developments case referred to above, the Court observed that there has to be

"evidence of some weight from which it could be concluded that persons of a different race or

nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."

25. Prima facie evidence has been held by the Labour Court in the decision of Rotunda Hospital v. Gleeson [DDE003/2000] to be "evidence which in the absence of any contradictory evidenceby the employer would lead any reasonable person to conclude that discrimination has probablyoccurred". The Claimant therefore has to not only establish primary facts upon which they willseek to rely but also that those facts are of sufficient significance to raise an inference ofdiscrimination.

26. In decision of Cork City Council v. McCarthy EDA21/2008, the Labour Court held that:

"The type or range of facts which may be relied upon by a complainant may vary significantly

from case to case. The law provides that the probative burden shifts where a complainant

proves facts from which it may be presumed that there has been direct or indirect

discrimination. The language used indicates that where the primary facts alleged are proved

it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may

appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts."

27. The Respondent submits that the Claimant was not unfavourably treated and has failed to raise

a prima facia case in relation to same. Furthermore, the Claimant has failed refused and neglected to name a comparator in relation to the discriminatory grounds. As leading commentators have stated

“In general, a complainant must prove less favourable treatment

as compared with another person in a similar position to the complainant. Therefore, without a comparator, the claim will fail, and the choice of the comparator is of significant importance to the success of any claim.” 

See paragraph 2-181 of “Employment Equality Law; 2nd Edtn.; Bolger, Bruton and Kimber, Roundhall 2022

28. The Claimant is required to prove that she was treated less favourably than her chosen comparator(s); if she cannot do this her claim must fail. In the decision of Saoirse Soden vSupervalu Harris' Supervalu (ADJ-00034460), the Adjudication Officer noted that:

"A comparator must be employed by the same employer as the complainant or by an

associated employer. A comparator is an evidential tool. They are intended to contrast

the treatment of the complainant, in respect to the matter complained of, with that of

another person in similar circumstances who does not have the protected

characteristics relied upon."

29. While it is acknowledged that a comparator may be hypothetical it is submitted that there is

nothing to suggest that a male individual in the Claimant’s position would have been treated

any different in the same circumstances.

There has been no unlawful direct or indirect discrimination on the grounds of gender

30. Strictly without prejudice to the Respondent's position that the Claimant has not demonstrated

any facts from which a presumption of discrimination can be shown, there has been no unlawful

direct or indirect discrimination on the grounds of gender.

31. It is noteworthy that the Recast Directive defines indirect discrimination at Art. 2(1)(b) as:

“where an apparently neutral provision, criterion or practice would have persons of one

sex at a particular disadvantage, and the means of achieving that aim are appropriate

and necessary.”

32. This is not a case of indirect discrimination on the gender ground.

No Victimisation

33. As stated above it is entirely unclear how the Claimant is alleging that she was victimised. However, if she is seeking to rely on the issue that she raised concerning her pay in 2021, then she fails to establish any causal link between the raising of that issue and the matters she now complains of. Eighteen months passed with no problems after she raised her pay issue. The Respondent acted appropriately and had the issue examined by an external HR company. Significant time passed and then she asked about part time work. There is absolutely no causal connection or nexus between the pay matter and the matters now complained of.

No Discriminatory Dismissal

34. The Claimant is making a claim of discriminatory constructive dismissal and she has singularly failed to show any nexus between the decision to resign and discriminatory behaviour on the grounds of gender. While the Claimant is taking this dismissal claim under the Employment Equality Acts she still has to satisfy the “constructive dismissal” test.

35. For a claim of constructive dismissal to be successful, an employee must demonstrate that there has been a fundamental breach of contract by the employer and/or that the employer’s conduct was so unreasonable that she had no option but to resign. The Claimant satisfies neither test.

36. The Labour Court stated in Cedarglade Limited v Tina Hliban UDD 1843 that the “contract test” requires that an employer be:

“guilty of conduct which is a significant breach going to the root of the contract of

employment, or which shows that the employer no longer intends to be bound by one

or more of the essential terms of the contract, then the employee is entitled to treat

himself as discharged from any further performance”.

37. This had previously been held to be the case in Western Excavating (ECC) Ltd v Sharp [1978] WLR 344. There is simply no fundamental breach of the contract of employment in the

within case.

38. The Labour Court also stated in Cedarglade that the ‘reasonableness test’:

“asks whether the employer conducted his or her affairs in relation to the employee so

unreasonably that the employee cannot fairly be expected to put up with it any longer

and, if so, she is justified in leaving. They must demonstrate that they have pursued

their grievance through the procedures laid down in the contract of employment before

taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

39. As also set out in Cedarglade:

“the Claimant must demonstrate that the Respondent has acted so unreasonably

and/or committed a fundamental breach of contract such that it was not possible for

her to remain in her employment any longer. Whether or not this test has been satisfied

in any particular case has to be considered from an objective perspective. Therefore,

the Court must examine whether or not, by the application of a normal standard of

reasonableness, an employee in the same circumstances as the Claimant would be

justified in resigning in response to the employer's conduct, whether or not that result

was intended.

In the Supreme Court case Berber v Dunnes Stores [2009] ELR. 61 Finnegan J. held: -

“The conduct of the employer complained of must be unreasonable

and without proper cause and its effect on the employee must be judged objectively,

reasonably and sensibly in order to determine if it is such that the employee cannot be

expected to put up with it.”

40. The decision in Iasc Sliogagh Dun Garbhain Teoranta Dungarvan Shellfish v Daniel Comanescu (UDD1756) referred to the Employment Appeals Tribunal decision of Beatty v Bayside Supermarkets UD142/1987 which, in referring to the need to utilise grievanceprocedures, held:

“The Tribunal considers that it is reasonable to expect that the procedures laid down in

such agreements be substantially followed in appropriate cases by employer and

employee as the case may be, this is the view expressed and followed by the Tribunal

in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the

procedure was not followed by the claimant and that it was unreasonable of him not to

do so. Accordingly, we consider that applying the test of reasonableness to the

claimant’s resignation he was not constructively dismissed”. (emphasis added)

41. Des Ryan in “Redmond on Dismissal Law” (2017) at page 439 states that;

‘there is something of a mirror image between ordinary dismissal and constructive

dismissal. Just as an employer for reasons of fairness and natural justice must go

through disciplinary procedures before dismissing, so too an employee should invoke

the employer’s grievance procedures in an effort to resolve his grievance. The duty is

an imperative almost always in employee resignations. Where grievance procedures

exist they should be followed: Conway v Ulster Bank Ltd. In Conway the EAT

considered that the claimant did not act reasonably in resigning without first having

‘substantially utilised the grievance procedure to attempt to remedy her complaints’.

42. In the decision of Feely v Fresenius Medical Care (UD 101/2008), the EAT found that the employee’s failure to invoke the employer's grievance procedure or speak to a trusted manager about her concerns were fatal to the constructive dismissal claim. In addition, the EAT found that the employee has not allowed enough time to pass to firmly establish whether her superior's behaviour towards her was as detrimental to her employment future as she believed.

43. The Claimant must demonstrate that her resignation was not voluntary i.e. that she had no alternative but to resign. The Claimant bears inter alia the burden to prove that the Respondent’s conduct was such that it was reasonable for her to terminate her contract.

44. The Respondent denies that the Claimant was treated in a manner which amounted to a constructive dismissal. It is respectfully submitted that the failure by the Claimant to fully utilise the grievance procedure and instead resign means that her case must fail. The Respondent relies on the Conway and Feely cases. She did not permit sufficient time for her complaint to be dealt with. She raised the complaint through her solicitor but unreasonably decided to resign after only 13 days, notwithstanding confirmation by Mr Rhodes that her grievance had been received. She did not even afford the Respondent the opportunity of a warning that if they did not respond within a set period of time, she would resign. Furthermore, the Claimant retained her position regarding her resignation even though the delay was explained to her on the day of her resignation. In simple terms the Claimant did not properly invoke the grievance procedure. Her action in resigning was unreasonable.

CONCLUSION

45. The Claimant was not discriminated against, she was not victimised and she did not suffer a discriminatory dismissal.

46. The Claimant is not entitled to the relief claimed or any relief. The Respondent reserves the right to adduce further and other evidence at the hearing of this matter once it has received the Claimant’s submissions and heard the oral evidence from the Claimant. The Respondent reserves its right to file Supplemental Submissions once it has heard the Claimant’s direct evidence in relation to these claims in light of the total lack of particularisation of the claims.

Following the conclusion of the evidence, Ms. Mallon B.L., on behalf of the Respondent made a closing submission which is referred to in the Findings Section below.

The Complainant gave evidence under affirmation. The Respondent called two witnesses, Mr. Eric Rhodes the Respondent’s C.E.O and Mr. O an employee of the Respondent. Both gave evidence on affirmation. The evidence was extensive and canvassed a considerable number of issues all of which were, to a greater or lesser extent, interrelated. For that reason, for ease of reference I have below categorised the allegations and narratives, making findings in relation to each by reference to the claims made, but the overall conclusions reached are based on a consideration of the allegations taken separately and together. 

The essential basis of the claim was that the Complainant was discriminated against, victimised and constructively dismissed all on the basis of her gender. The claims centred on three key events which were:

1. A Complaint made in 2021 by the Complainant in relation to gender discrimination regarding a pay increase, the manner in which it was handled and the consequences thereafter for the Complainant.

2. The Complainant’s request in 2022 to revert to part-time work and the reaction thereto.

3. The actions of the Respondent in taking steps to create and fill a new position in the company for Vice President of Finance. (“the New Role”)

The Complainant contended for a link as between the above events in support of a general allegation of gender discrimination by the Respondent against her which arose as a reaction to her pay complaint and essentially continued throughout her employment leading ultimately to her resignation in January 2023.  I will set out below a summary of the evidence on these issues followed by a summary of the submissions made by the parties following the evidence in relation to the entire case, followed by findings from these issues relating to each of the claims made.

In addition to the principal allegations the Complainant also cited specific factual situations which, it was contended, each raised an inference of discrimination. These specific situations comprised: firstly, the Complainant’s exclusion from dinners held after Board meetings; secondly, the Complainant being asked to order wine at a company dinner and thirdly, the Complainant’s exclusion from certain Board meetings. I will make separate findings on each of these issues.

Finally I will set out my overall conclusions in relation to all of the allegations taken together.  

Summary of Evidence

There follows a summary (as distinct from a transcript) of the evidence as relates to the Complainant’s complaint in relation to her pay, her request to work part-time, the subsequent events involving the introduction of the New Role and her resignation

Evidence

When she started work with the Respondent the Complainant worked part-time, twenty hours per week. This continued through 2018 and 2019 but in 2020 her hours increased to thirty per week and by 2021 she was working full-time, forty hours per week.

The Complainant’s appraisals which were carried out by Mr. Rhodes were consistently positive. She rose to the position of Head of Finance and took on full-time hours in 2021. That year she received a salary increase of 5.6% which equated to a €5,000 per annum increase. She was initially happy with this increase. However, when she was reviewing the salaries for other members of staff and external consultants, all of whom were men, she realised that she received the smallest increase of all with the increases for others ranging from 11% to 50%. In February 2021 the Complainant brought the issue to the attention of Mr. Rhodes who undertook to discuss it with Mr. Foy and Mr. Novak. Mr. Rhodes later informed the Complainant that Messrs. Foy and Novak were upset that the Complainant had accessed confidential company information regarding salaries paid to other employees and Mr. Foy wanted to meet the Complainant which he did on a zoom call later that month. Mr. Foy said that in other companies, an employee’s salary details were not available to other employees. The Complainant said that she accessed the information as part of her duties when processing the company payroll and she said that Mr. Foy accepted that. He told the Complainant that he would review her salary increase by the 30th of June 2021 but he did not revert by that date. However, an external HR Consultancy firm was retained in May or June 2021 and following a review of the pay increases by that firm, the Complainant received an increase in her salary up to 10% which was then back-dated to January of 2021. The Complainant stated in evidence that by December 2021 the salary issue had been resolved.

In cross examination the Complainant accepted that in her appraisal in December 2021 she stated that “things were going great” and she said that she felt at that time that she had moved on from the incident. She accepted that at that time, she had no complaint of discrimination. The same was also true immediately before she sought to go part-time in May 2022. She further agreed that Mr. Rhodes was trying to make the proposal work such that there was no discrimination issue up to June of 2022.  

Mr. Rhodes in his evidence and under cross examination said that he discussed the issue with Mr. Foy who directed an independent review. He recalled Mr. Foy being of the view that it was unprofessional for the Complainant to use other employee’s data but if there was any gender discrimination this would be looked into. He accepted that Mr. Foy was annoyed about the reference to other employees’ salary details but he did not believe that the Complainant, from this point on, had a target on her back and this was so despite the fact that in 2021 Mr. Rhodes had no concerns about the Complainant’s abilities and suitability but by 2022, about six or seven months later, the Board were expressing concerns. Mr. Rhodes accepted that he and Mr. O’Reilly held the view that there were no issues with the Complainant’s level of experience and capacity to handle the work of finance whereas Mr. Foy and Mr. Novak had a different view in that they were concerned that the Complainant did not have sufficient exposure, and experience and they did not think that training would make up for this deficit. Mr. Rhodes accepted that these concerns were not put to the Complainant by anyone because in his opinion he didn’t see how it would have been productive to raise the issues with the Complainant at that time. It was put to Mr. Rhodes that although the Complainant thought that the issues regarding her pay were resolved, that view was not shared by Mr. Foy and Mr. Novak. Mr. Rhodes disagreed and said that they all thought that the pay issue was settled and put aside.  

The complainant formally requested to move to part-time duties in an email dated the 27th of May 2022. She suggested that another part-time person be recruited to attend to the more routine aspects of her role. Her salary would remain the same but split as between herself in a reduced hours role and the new so that the proposal would be cost-neutral for the Respondent. The Complainant discussed the proposal with Mr. Rhodes who indicated that the proposal “shouldn’t be a problem”. The Complainant was then authorised to advertise for the part-time role which she did.  However by the end of June 2022 the Complainant reported difficulty finding a suitable candidate. Mr. Rhodes then asked the Complainant to put the recruitment process on hold because, as he said, “we are thinking of doing something else”. 

The Complainant identified a male colleague whom she believed had requested moving to parttime work which request, she understood was granted.

By September 2022 the Complainant’s request had still not been granted but her existing (full-time) workload had increased. She was offered some support from an outside consultancy firm and she was undertaking the training-in of a person from that firm who was to assist her with her workload. 

In November 2022 the Respondent was in the process of making another employee redundant. The Complainant was not in favour of this as she felt that the company needed to mindful of retention. The Complainant recalled a conversation with Mr. Rhodes on the 14th of November 2022 when Mr. Rhodes informed her that the Company was in the process of advertising for the role of Vice President of Finance (“the New Role”). The Complainant, who was Head of Finance, was stunned. She could not see how there would be capacity in the company for her role as well as the New Role. Mr. Rhodes explained that the Company was trying to find someone with more international experience and when that person was appointed the Complainant would then hand over her role to that person who would then decide on the Complainant’s role thereafter.

The Complainant said that the role of Vice President of Finance and her own existing role were one and the same with some minor exceptions. As the most senior finance person in the company she said that she was already looking after the international aspects of the finance role. This was in effect, her role, which was being advertised.

The Complainant asked Mr. Rhodes if she was being invited to apply for the role and he said that she could apply and that if she didn’t get the job, she could remain in a part-time capacity at least until August 2023. When she asked whether the part-time work would involve donkey work or the s..t part of the job, Mr. Rhodes agreed, and he then said with his hand cupped to his face “Start looking for another job!”. The Complainant was left with the understanding that she could either accept a demotion or leave.

The Complainant said to Mr. Rhodes “if you want me to leave, make me an offer”. Mr. Rhodes said that the Complainant would get a far better package than had been given to another employee. The Complainant asked Mr. Rhodes to confirm the content of the discussion in writing. The Complainant subsequently received an email from Mr. Rhodes dated the 10th of December 2022 the text of which (where relevant) was as follows:

“Hi Tracy,

I know you’ve been waiting on a written offer of some sort from me and I’ve been trying

to get something for you. I ended up with [Advisor named] [who] actually advised me that there isn’t actually a need for an offer because ERS is not trying to get rid of you. According to her, the facts are:

The board wants a full-time VP of finance going forward

You may apply for that position

The board anticipates the need for someone to support the VP Finance (perhaps in a parttime capacity) once they are brought on

Given your desire to cut down from full-time, you would still be considered for that

support position if you weren’t to get the VP position

If/when we arrange to bring someone on then there might be a further discussion to be had.

But other than my commitment to keep you on (paying full-time, regardless of whether

you actually need to be working full-time) through the end of August no matter what

happens in this hiring process, stands. We aren’t planning to cut off [name of person assisting] so she can continue to support you.

I fear I’ve messed this whole thing up and only created more stress for you than I should

have. I thought the full-time requirement would be a non-starter for you. We don’t want to

see you go. We do want to see you stay on, even if we hire someone else into the VP slot.

It’s an awkward position for you, I understand completely.

We can discuss more on Monday on our call if that would help.

- Eric”

The Complainant told Mr. Rhodes that this email completely contradicted what he had said in the previous meeting, and he replied that he “did not want to sugar-coat” the message he was giving her. He said that the Complainant’s request to go part-time had led to a discussion at board level where two members of the board, Mr. Novak and Mr. Foy favoured advertising and filling the New Role whereas he (Mr. Rhodes) and Mr. O’Reilly, a board Member, were of the view that there was no need to get anyone else to do the finance role as the Complainant was already doing it.

The Complainant received a very positive review from Mr. Rhodes in December 2022 which confused her in the light of the plan to fill the New Role. The Complainant saw the situation as one where there was a disagreement at board level. She looked for and found another job in December 2022. The contract for this job was signed by the Complainant on the 19th of December 2022 but she was not due to start this job until the 1st of March 2023. The Complainant said that the other job was her “Plan B”, by which she meant that she wanted to resolve the issues with the Respondent and to save her job, but she was protecting herself as best she could by sourcing alternative employment in case she could not.  The Complainant instructed her solicitors to write to the Respondent on her behalf to initiate a formal grievance and providing details of the issues she wished to have addressed. This letter was dated the 3rd of January 2023 (“the Grievance Letter”). After the Grievance Letter and before the Complainant resigned, she had a conversation with the Personal Assistant to Mr. Rhodes who said to the Complainant “It will be very sad when you’re gone”.

The Complainant instructed her solicitors to write a letter of resignation on her behalf on the 16th of January 2024 (“the Resignation Letter”). Mr. Rhodes did respond by email to this letter, but the Respondent did not ask the Complainant to reconsider her resignation. The Complainant ceased employment on the date of the Resignation Letter, the 16th of January 2023. She said that she had never been through anything like what she had been through with the Respondent, and she did not understand why she was treated the way she was.

In Cross-examination the Complainant insisted that she only applied for her present job (i.e. the one she started in March 2023) when Mr. Rhodes said in his meeting with her that she should look for another job.

The Complainant accepted that she earns more in her present position than she did when working for the Respondent.

It was put to the Complainant that when he was asked by the Complainant’s colleague whether he could go part-time Mr. Rhodes said that if that need arose it could be looked at, at that stage. It was further put to the Complainant that this colleague worked full-time then and still works full-time. This evidence was also given by the colleague in question. In cross examination this witness said that when he made a general enquiry as to whether part-time hours would be available, Mr. Rhodes said that that wouldn’t be a problem  

It was put to the Complainant and stated in his own evidence by Mr. Rhodes that the New Role was considerably different to her own and included a substantial international dimension in relation to Financial Modelling as well as tax expertise. The Complainant did not accept that these differences changed the essential nature of the New Role.

It was put to the Complainant, and she accepted that as she herself needed to and did take advice in relation to the Grievance Letter so too was it reasonable for the Respondent to seek advice when it was received. She also accepted that the Grievance Letter was acknowledged by email by Mr. Rhodes on the day that it was received. The Complainant further agreed that Mr. Rhodes’ email to her on the 16th of January 2023 (on the same day as the Resignation Letter) was not unreasonable but she did not agree that a reasonable response to that email might or would have been to wait. It was suggested to the Complainant that she had no interest in giving the Respondent time to address the grievances in January 2023 as she had already obtained another job in December 2022. The Complainant denied this and stated that the conversation with Mr Rhodes where she was advised to find another job and the comment allegedly made by his personal assistant were the final straws. 

Mr. Rhodes said that the proposal to create and fill the New Role was contemplated at board level in early 2022 before the Complainant’s request to work part-time. The idea was discussed very informally originally. The reasoning behind it arose from a concern that the company was not adequately equipped to deal with the foreign taxation and revenue issues which would arise as its international licences grew and expanded. Initially it was thought that the need could be met by back-filling. In May of 2022 the Complainant was authorised to advertise for a person to take up some of her duties to facilitate her switching to part-time.

When the initial recruitment process organised by the Complainant did not yield a suitable candidate for the new part-time person to take on some of her duties she was asked to put the process on hold. He did not think that the New Role was discussed at the board meeting in July 2022 but he thought that it was the subject of some one-to-one discussions with individual Borad members. The New Role was discussed at the October 2022 board meeting. 

The person initially selected as the top candidate to fill the New Role was a woman but when she declined the role, it was then offered to its present incumbent who is a man.

Mr. Rhodes remembered several conversations with board members regarding the need for the New Role. He understood that the board was looking for someone with more experience and that the role would need to be filled full-time. He did not discuss the New Role in detail, but he did mention that taxation expertise was an important aspect of the role. As the Role was envisaged as a full-time one, he thought that it would be a “non-rummer” for the Complainant who was already seeking to go part-time in her own role. The additional duties associated with the New Role were outlined to the Complainant the issues of taxation and financial forecasting were highlighted as important aspects of the New Role.

Though not discussed in detail with the Complainant, Mr. Rhodes in his evidence provided some further detail regarding the differences as between the New Role and the Complainant’s role as Head of Finance. These included an increase in taxation issues and the need for expertise in financial forecasting. Although the Complainant was handling renewals without assistance, external advisors were being used more often and tax issues from Singapore and China were anticipated in addition to existing issues with withholding tax in the United States.

As regards the work that would remain for the Complainant if she applied for and did not get or if she elected not to go for the New Role, Mr. Rhodes did not describe the remaining duties as “the s..t part” of her job. He recalls her saying that as a question to him and him replying “yes if you put it that way”. Mr. Rhodes was certain that he told the Complainant that she could apply for the New Role or that she could continue her existing role on a part-time basis with the support of an outside firm. He said that he clearly remembered the need to be sensitive in what he said to the Complainant, and he did not tell her to look for another job. Mr. Rhodes did not want the Complainant to leave, and he said this to her. However, when she expressed her unhappiness with the whole situation he did say in response “you can always look for another job if that’s how you feel” which he said is not the same thing as telling the Complainant to get another job. The Complainant then said “make me an offer”. Mr Rhodes said that his impression was that the Complainant did not appear interested in staying on to carry out menial duties and that she would probably be leaving and that she was seeking a severance package. He said he would see what he could do and that he would revert. Mr. Rhodes said that his personal opinion was that he did not want the Complainant to leave, and he did not think that she was being pushed out.

Following this discussion in November 2022 Mr. Rhodes made contact with the board members and he also sought HR Advice. The HR advisor wanted to know if terminating the Complainant’s employment was the objective and he told the advisor that it was not. The advice he then received was to the effect that if the Complainant was not being terminated, the Respondent should not be offering a severance package.

The Complainant did not raise a grievance directly with Mr. Rhodes. She did not tell Mr. Rhodes at any stage that she had secured another job. When the Grievance Letter was received Mr. Rhodes immediately advised the board members and was directed to retain an Irish firm of solicitors. When the Resignation Letter was received thirteen days later, Mr. Rhodes was very surprised. He emailed the Complainant to say that he was coming to Dublin and it was his hope that the Complainant would wait before proceeding with her resignation.

In cross-examination Mr. Rhodes agreed that his appraisals of the Complainant’s work were consistently positive throughout her employment. There was one very minor issue with a small sum of tax owing in Delaware U.S.A. which was a small accounting issue but one Board member thought that the Complainant should have known about it. Mr. Rhodes was the Complainant’s manager and he never told her that there were any issues or concerns with her performance. In her appraisal in 2019 he described her as fully capable to deal with all accounting requirements and that she was “a god-send”. In 2020 he said her performance could not have been better. In 2021 no additional training needs were identified, she still had all of the skills required and she was “a star”. He confirmed that these descriptions accurately reflected his views when they were written but he said that since the Complainant’s departure that view has changed somewhat. However he did confirm that prior to the Complainant’s departure he had no serious concerns. They did discuss tax issues in Delaware and Missouri where a delay in dealing with taxation resulted in additional costs to the Respondent of a few hundred dollars. This he did not think was a reason to replace the Complainant, but the Board thought differently. The Board wanted someone with more experience especially as the Respondent intended to approach bankers to seek finance.

Mr. Rhodes accepted that the Complainant’s request to work part-time precipitated the discussion between the Board members about getting a more experienced person for the New Role. Mr. Rhodes was not a voting member of the Board.

Mr. Rhodes accepted that the Respondent does not have a policy in relation to requests for part-time work. He denied that the Respondent has a concern generally about part-time work. He took advice from HR consultants but the advice he received did not mention the Code of Practice. It was put to Mr. Rhodes that the Respondent failed to comply with the Code of Practice as no decision was ever clearly communicated to the Complainant in response to her request and he said that the Respondent did not deny her request but made a proposal that she would work part-time with support until the New Role was filled.

Mr. Rhodes denied that the Respondent wanted to replace the Complainant and that the Respondent concocted an excuse for doing so when in reality it was retaliation for her equal pay complaint and following her request for part-time work.

It was put to Mr. Rhodes that the job description almost exactly matched the Complainant’s existing role but he said that there were significant differences in relation to mid-year forecasting, performance tracking and financial modelling which the Complainant was not doing in her role. He denied that these differences were emphasised on advice received for HR Consultants. He agreed that the person hired to fill the New Role was a man and that the remuneration package was higher than the Complainant’s. However the New Role was first offered to a woman.

Mr. Rhodes was unclear as to which of two possible grievance procedure in the Respondent was to be followed and he said that he was taking advice on the Grievance Letter and he was arranging meetings with lawyers when the Resignation Letter arrived. He thought that he did tell his Personal Assistant that he was arranging meeting following receiving solicitors letters from the Complainant

Closing Submissions

Following the conclusion of the evidence, the representatives for the parties each made a closing submission.

On behalf of the Complainant, Mr. Twomey, Solicitor, submitted as follows:

The Complainant’s work was beyond reproach and she was well capable of performing all aspects of her job and no performance issues had been raised during her employment even though some minor issues had been mentioned in the evidence at the hearing.

The first and critical difficulty was the pay issue in 2021 when the Complainant discovered that she received the lowest pay increase and that her male colleagues had all received higher increases. The Complainant brough the issue to Mr. Rhodes who in turn spoke to Mr. Foy about it. The latter had an adverse reaction and even though the pay increase issue was rectified the Complainant was a marked woman from then on and this was the genesis of the gender discrimination which would subsequently follow.

The Complainant had thought that the gender pay issue had been closed off but when she requested to go part-time in 2022, this request triggered Mr. Foy again and from that point the Complainant’s employment was doomed.

Mr. Foy did not give evidence and Mr. Rhodes was sent out to bat for the Respondent. A request to work part-time is generally made by women. There is a Code of Practice in relation to how a request for part-time work should be handled but it was clear from the evidence that Mr. Rhodes was unaware of its existence and the Respondent company ignored the code of practice despite having external HR advice.

A decision was made that the Complainant’s role would “transition” which in reality meant that the Complainant would be replaced. The Complainant’s position was doomed.

Both the pay issue and the request to work part-time are gender related. The failure to consider the request to switch to part-time work was indirect discrimination. It was also direct discrimination insofar as Mr. O,  a male colleague of the Complainant was told by Mr. Rhodes that if he wanted to work part-time that wouldn’t be a problem. It was a problem for the Complainant because the response to the request was to replace her.

In the months following the Complainant’s request to work part-time a charade took place the purpose of which was to procure the Complainant’s resignation. A new role was invented. However, this role overlapped overwhelmingly with the Complainant’s role. Essentially it was the same job, her job, which was being advertised. There was evidence of efforts being made by HR advisors, but Mr. Rhodes was inconsistent in his evidence. It was clear that the decision to create and fill the new role was made by decision-makers without any discussion or consultation with the Complainant. The duties associated with the Complainant’s existing job and the new role were the same. If any aspects of that role required training the Complainant was not offered training. No options were considered and it is clear that the decision was to replace the Complainant.

The Complainant was excluded from board meetings after her holidays in July 2022 and again in October 2022. The Complainant does not accept the necessity to exclude her altogether from those board meetings. If her position was to be discussed at board level in October 2022, she could have attended the meeting and just stepped out when that discussion took place.

At a social event the following evening the Complainant was treated like a waitress by Mr. Rhodes in front of the Directors who were also present. It was not a trivial matter. It was hurtful and demeaning and hard to interpret it as anything other than a situation where a group of men were ridiculing a woman.

An ultimatum was eventually given to the Complainant by Mr. Rhodes in a series of meetings in October 2022. The Complainant could either take on the less meaningful aspects of the New Role or she could apply for her own job which she would not get, or she could find work elsewhere.

Mr. Rhodes was primarily based in the USA. To an Irish woman working in Ireland, being told to look for another job was a clear indication that her days were numbered.

The only conclusion that could be drawn was that in the Respondent’s view, the Complainant’s employment was not going to continue beyond August 2022 when she was going to be cast aside.

When the Complainant was told to find another job, she prudently did so and would have been criticised had she not done so. In an economy of near full employment, she did find alternative employment. She received a job offer and agreed to commence this new employment in December 2022 but her preference was to continue her employment with the Respondent and to pursue her grievance.

It was accepted in evidence that the Complainant had raised an informal grievance which did not produce a satisfactory outcome. The Complainant then prudently instructed her solicitors to write to the Respondent in the hopes that, even at that stage, the Respondent would address the Complainant’s concerns and that issue would be resolved.

It was denied that the Complainant’s resignation was too hasty. The Respondent had all of December 2022 and two weeks in January 2023. Mr. Rhodes was unable to say if the Respondent followed its own grievance procedure properly. It was contended that none of the steps provided in either version of that policy was followed. The Respondent says that it wanted to take legal advice, which is in order, but this did not permit the Respondent to ignore the grievance procedure.

The Complainant resigned on the 16th of January 2023 and even at that point, post-resignation, other cases have been resolved. An employer is expected to try to resolve an issue causing a resignation, but the Respondent never invited the Complainant to withdraw her resignation. There was only one reason for this failure: the Respondent was perfectly happy with the Complainant’s resignation as the Respondent wanted the Complainant to go and ideally and preferably before this time, in August 2022. The only letter issued by the Respondent was just to acknowledge the letter of resignation.

Discrimination is extraordinarily difficult to prove but it is enough to establish facts as the Complainant has done from which an inference of gender discrimination can be drawn and then the questions is whether the Respondent can demonstrate that there were no discriminatory reasons for what happened and in this regard the reasons put forward by the Respondent are cobbled together and lacking credibility.

On behalf of the Complainant, Ms. Mallon B.L., submitted as follows:

The burden of proof is on the Complainant to establish facts from which a presumption of discrimination can be drawn. Many of the arguments made would be suitable to a straightforward unfair dismissal claim but the present claim is not one for unfair dismissal nor was a claim made under the Protection of Employees (Part-time Work)  Act 2001. The Complainant’s role was never made redundant and there is no claim under the Redundancy Payments Acts. Much of the evidence and submissions are therefore of no relevance to the claims actually made.

The claim made has changed in that originally it was alleged that the Complainant was discriminated against following her request to switch to part-time work but now the submissions on behalf of the Complainant extend to an allegation that when the Complainant sought a pay increase she had a ‘target on her back’ from then on. This claim is one of victimisation. However in her evidence the Complainant confirmed that all was well in her employment and there were no issues prior to August of 2022.

The argument that more women than men apply for part-time work is an attempt to drag a different issue into a gender discrimination claim. In any event the example offered by the Complainant was that of a male colleague Mr. O. This individual is not a comparator and even if he is then he was not treated differently. He did not actually apply to work part-time but asked Mr. Rhodes whether, if he pursued a course of study, he could work full-time to which Mr. Rhodes said that he would try to make it work. Mr Rhodes did the same with the Complainant. She was permitted to advertise for a person to take up some of her duties and when this proved impossible a contractor was put in place with a view to attending to those duties.

The arguments made are assumptions but cannot give rise to presumptions. There is nothing to link the Complainant’s gender to her resignation.

[In relation to the specific incidents raised the following was submitted]

In relation to the wine issue it has to be noted that the alleged incident was never raised (by email or otherwise) after the event or at any stage and the formal grievance submitted by the Complainant did not mention it either. The Complainant’s submissions elevate the issue to one of a group of men ridiculing a woman but the Complainant did not say this in her evidence. If the incident was a serious as was alleged it surely would have been mentioned sooner than it was. Asking someone who, it was thought, had the company credit card to order more wine is not discrimination even if that person did not in fact have the company credit card.

Regarding being excluded from the board meetings the Complainant was not entitled as such to attend meetings but rather she was invited to do so. She was not invited to attend in October 2022 but the reasons given were not discriminatory.

Regarding the new role the business decision which brought this about had nothing to do with gender. The first person to be offered this Role before it was given to a man was in fact a woman.

The Complainant stated that she only looked for another job as a back-up if the situation in her employment with the Respondent did not resolve. The credibility of this evidence was doubted as the Complainant never told Mr. Rhodes that she had been offered another job and her recollection of when the job was offered and accepted was unreliable.

The Complainant raised her formal grievance through her solicitor on the 3rd of January 2023. Mr. Rhodes does not live in Ireland. He was entitled to get advice especially when a solicitor’s letter was received setting out the grievance. The Complainant jumped the gun. She didn’t retract her resignation when she had the opportunity. She did not act reasonably.

The Complainant’s email to Mr. Rhodes of the 15th of November 2022 did not inform Mr. Rhodes that the Complainant was looking for another job and the formal grievance letter is not sent until the 16th of January 2023. The fact is the Complainant was offered alternative employment on the 2nd of December 2022 and she was asked by her new employer whether she could start on the 16th of January 2023. [The Complainant’s solicitor clarified that the Complainant did not actually start until March 2023]. The Complainant said that the alternative employment was her back-up plan but between the 2nd of December 2022 and her resignation she did not tell the Respondent that if the Respondent did not sort out her grievance, she had another offer. She made contact with her solicitor in November 2022 but the grievance letter and letter of resignation were not sent until January 2023 when the circumstances would suggest that the letters should have been sent as soon as possible. 

Looking at the Respondent’s response to the Complainant’s resignation letter, on the same day as it was sent, Mr. Rhodes emailed the Complainant telling her that he was arriving the next day. Given the Complainant’s response to that email there was simply no point in asking the Complainant to reconsider and as it is now known the Resignation Letter was dated for the same day when the Complainant was due to start her new job, a job in which she is financially better off.

The Constructive Dismissal Claim

Applicable Law

Dismissal is defined in Section  2 (1)      as follows:

“dismissal” includes the termination of a contract of employment by the employee

(whether prior notice of termination was or was not given to the employer) in

circumstances in which, because of the conduct of the employer, the employee was

or would have been entitled to terminate the contract without giving such notice, or

it was or would have been reasonable for the employee to do so, and “dismissed”

shall be construed accordingly”

This definition permits of constructive dismissal where the employee is either entitled to terminate or where it is reasonable to terminate arising from the conduct of the employer. The concept is analogous with constructive dismissal as that term is commonly understood in the context of the Unfair Dismissals Acts and similarly the procedural rules and tests applicable to unfair constructive dismissal claims apply equally to constructive discriminatory dismissal claims although the substantive tests with regard to a discriminatory dismissal are narrower such that the conduct of the employer must constitute discrimination on the relevant ground relied upon.

It is well settled that a constructive dismissal is a mirror image of a dismissal in the sense that an employee must behave reasonably before resigning and must generally invoke and pursue the internal grievance procedures before making a decision to resign.

The Complainant’s formal grievance was initiated by letter (“the Grievance Letter”) from her solicitors dated the 3rd of January 2023. This letter (running to five pages) set out the Complainant’s grievances in significant detail and in summary, the Complainant’s solicitors contended that:

We are satisfied that the Company’s actions constitute:

(i) a repudiation of our client’s contract of employment and clearly indicate that it does not intend to comply with key terms and conditions of her employment.

(ii) a clear breach of the Employment Equality Act 1998 (as amended) in circumstances where the Company’s repudiation of our client’s employment contract has occurred in response to our client having raised issues around gender discrimination and her request for part-time working (a request that is far more often made by female employees); and

(iii) victimisation within the meaning of the Employment Equality Act 1998 (as amended).

Towards the end of the letter the following it is made clear that the Complainant is seeking to invoke a formal grievance procedure

“Please note that our client requires that these concerns immediately be addressed by the company under its’ current grievance procedure”

Mr. Rhodes said that on receipt of the letter he sought legal advice as he felt that where the Complainant had instructed solicitors to advance her grievance it was appropriate for the Respondent too to be represented. The point was made in submissions that this letter was written on the first working day of the New Year following the Christmas vacation.

Less than two weeks after the Grievance Letter was sent, the Complainant’s solicitor sent a letter dated the 16th of January 2023 wherein the Complainant notified the Respondent of her resignation with immediate effect (“the Resignation Letter”). That letter stated as follows:

“We note that you acknowledged receipt of our letter of 3 January 2023 by email that same day. We also note, with considerable disappointment, that neither we nor our client have heard anything further from you or the company in relation to the matter. In particular, we note that no action has been taken in relation to our client’s grievances. Rather, the company appears to have taken the view that it would simply continue to ignore our client’s grievances in the hope that she would resign. We note, in that regard, that your Personal Assistant, [name provided], has recently remarked to our client that “it will be so sad when you are gone”.

Given the company’s repudiatory breach of our client’s contract, the company’s utterly unreasonable treatment of her and the company’s failure to address her grievances, she has concluded that she has no option other than to resign with immediate effect. You might please accept this letter as notification of her resignation with effect from the date of same. We trust that our client will be paid any and all monies due and owing to her on or before the next applicable payroll date.

Please note that we continue to await your response to our client’s data subject access request.”

This letter received a response on the same day as it was received, which took the form of a direct email contact from Mr. Rhodes to the Complainant sent at 11:38 am wherein Mr. Rhodes stated:

“Hi Tracy

Just received your resignation from your lawyer. We were working on this and because you had obtained a solicitor we felt compelled to obtain one and speak to them before reaching out. It's all very confusing and I understand your frustration. It was our hope to have our solicitor speak to yours as the first step this week. I don't quite know where this leaves us.

I arrive into Dublin this afternoon and should have more info tomorrow.”

The Complainant responded, again on the same day, the 16th of January 2023 as follows:

              “Dear Eric

Thank you for your email but I believe that the position is quite clear.

I asked to work part-time. In response, I was told to look for another job and that I would be paid an exit package. I was then told that I was to be demoted instead or could leave my employment. I was not willing to accept a demotion and my solicitor wrote to the company setting out my grievances. The company acknowledged receipt of that letter but did not address my grievances. I have been advised that the company has repudiated my contract of employment. I also believe that it has treated me dreadfully. In the circumstances, I had no option other than to resign and I instructed my solicitor to communicate my resignation to you earlier today.

I wish you and the company every success in the future but feel bitterly disappointed about the manner in which I have been treated. I intend to instruct my solicitor to initiate a complaint to the WRC on my behalf.

Kind Regards

Tracy”

Finding

The Grievance Letter alleges both a repudiatory breach of contract as well as unreasonable discriminatory behaviour on the part of the Respondent. However, in that letter the Complainant did not rely on the alleged repudiation of her contract to terminate her contract there and then without notice. It thus follows that at that point in time, when the Grievance Letter was sent on the 3rd of January 2023, the Complainant had elected to pursue a formal grievance rather than rely on the facts as they stood, to justify a resignation without further action. The clear implication was that any resignation would be deferred until the grievance procedure had been completed. However, just thirteen days later, the Complainant’s position had changed such that by the 16th of January 2023, the Complainant did then assert that the Respondent had repudiated her contract such that she was then resigning. The Resignation letter referred to comments ascribed to the Personal Assistant to Mr. Rhodes where she was alleged to have said that it would be so sad when the Complainant was gone. Further on in the letter the stated reason for the resignation was framed thus: “Given the company’s repudiatory breach of our client’s contract, the company’s utterly unreasonable treatment of her and the company’s failure to address her grievances, she has concluded that she has no option other than to resign with immediate effect”.

The question arises as to what had changed as between the 3rd of January 2023 when the Complainant called for a formal grievance procedure and the 16th of January 2023 when she had no choice but to resign. The only two issues indicated in the correspondence are the comments attributed to the Personal Assistant and the delay by the Respondent in formally engaging with the grievance.

As to the first of these two issues I find that even if a comment such as that ascribed to her was made by Mr. Rhodes’ Personal Assistant, this does not and cannot reasonably be deemed a formal communication by and on behalf of the Respondent nor does it in itself provide evidence that the Respondent had drawn a line under the Complainant’s employment and was in effect waiting for her to leave of her own accord.

As to the second issue, that of delay, I have considered this issue very carefully in the light of the opening and closing submissions and the oral evidence given by the Complainant and Mr. Rhodes. I find that the delay was not excessive given the circumstances. The initial Grievance Letter did not indicate any extreme urgency necessitating immediate engagement under threat of resignation in default of same. There were two versions of the Grievance Procedure but it was agreed that neither contained a timetable. As pointed out by the Respondent, there was as a matter of fact, some urgency since at that time the Complainant had found another job and was due to start on the 16th of January 2023. While I accept the Complainant’s clarification that the Complainant did not in fact start the new job on that date but at a later date in March 2023, I find that when the resignation letter was sent, she was in all probability, expecting to start that very day or at least very shortly afterwards. Regardless of the actual start date, I accept the Respondent’s argument that the fact that the Complainant had found another job which she was due to start imminently was withheld from the Respondent and thus Respondent was unaware of the urgency presented by that situation. I further find that the time of year was a factor as the Grievance Letter was sent on the first working day of the New Year immediately following the Christmas period and this fact would have added to the already complicated process of sourcing, seeking and then implementing legal advice in response to the Complainant’s Grievance Letter, which emanated from a solicitors office and which contained detailed issues of fact and law.

Although I am satisfied that the delay of 13 days by the Respondent was not in itself unreasonable, I have also looked to the conduct of the parties immediately following the Resignation Letter with a view to considering whether the Respondent, even if taken by surprise by the Resignation, should have done more to retrieve the situation which was created thereby. It was submitted by the Complainant’s solicitor, quite correctly, that many cases of resignation have been resolved after the resignation by engagement between the parties, but I do not accept that there was anything further which it was reasonable to expect the Respondent to have done in the circumstances of the present case. In this regard I note that Mr. Rhodes wasted no time by communicating by email with the Complainant within a very short time of receiving the Resignation Letter and it was clear that he was taking the issue so seriously that he was arranging to travel to Ireland as soon as he could. His email ends with “I arrive into Dublin this afternoon and should have more info tomorrow”. My conclusion is that the Complainant resigned without giving the Respondent a reasonable opportunity to address the Complainant’s grievances such that the Complainant did not behave reasonably in all of the circumstances and her constructive dismissal claim accordingly must fail. Given that finding a ruling on the substantive grounds of discrimination which were advanced in support of the dismissal claim is unnecessary. 

The Gender Discrimination Claims

Further or in the alternative to her claim for Constructive Discriminatory Dismissal, the Complainant also relied on a series of allegations to support a claim for gender discrimination contrary to Sections 6 and 8.

Applicable Law

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

“a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”.

Section 6 (2) sets out the grounds in respect of which discrimination, as defined above is prohibited. Of relevance to the present case is ground (a) the “Gender Ground”.

Section 6(2)(a) of the Acts defines the discriminatory ground of gender as a situation where, as between two individuals:

“(a) that one is a woman and the other is a man (in this Act referred to as “the

gender ground”)”

Section 8 (1) paragraphs (b) and (d) of the Acts prohibit discrimination against an employee respectively in relation to conditions of employment and access to promotion.

Section 85A of the Acts makes specific provision in relation to the burden of proof in Discrimination Claims

Section 85A (1) of the Acts states that:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12E.L.R. 201, the Labour Court concluded that:

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”

The Labour Court has held in Hallinan v. Moy Valley ResourcesDEC-S2008-025 that to establish the relevant facts the Complainant must:

(a)    establish that he or she is covered by the protected ground;

(b)    Establish the specific treatment has allegedly taken place;

(c)     The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

Similarly in Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 where Equality Officer, Vivian Jackson stated:

“It appears to me that the three key elements which need to be established by a

complainant to show that a prima facie case exists are (i) that s/he is covered by the

relevant discriminatory ground(s), (ii) that s/he has been subjected to specific treatment

and (iii) that this treatment is less favourable than the treatment someone, who is not

covered by the relevant discriminatory, has been or would be treated.”

The way in which Section 85 A has been applied has been further clarified. In Cork City Council v. McCarthy, Labour Court, EDA0821 the Labour Court had the following to say about the process:

“The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Dyflin Publications Ltd. v. Spasic EDA0823, the foregoing passage was cited with approval.  In addition the Court had regard to the judgement of Mummery LJ in the U.K. Court of Appeal in Madarassy v Nomura International plc, [2007] IRLR 246. In that case a provision similar to Section 85A was considered and the Court said that the provision:

“does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.

Approving of the foregoing passage, the Labour Court in Dyflin Publications held that:

“…in considering if the burden of proof shifts the Court should consider any evidence adduced by the Respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the Complainant.

Finding

It was accepted by the Complainant in her evidence that by December 2021 the pay issue had been resolved and it was clear that this issue was not of itself the subject matter of the discrimination claim although it formed an important component of the victimisation claim (dealt with separately below).

In relation to the general claim of gender discrimination other than as relates to dismissal, the primary focus of the claim relating to the part-time work request and the events which followed it was twofold: firstly, it was contended that the Respondent did not comply with the Code of Practice on Access to Part-Time Working as introduced by S.I. No. 8/2006 - Industrial Relations Act 1990 (Code of Practice on Access to Part-Time Working) (Declaration) Order 2006; secondly, it was contended that the Complainant’s request was used as an opportunity to remove the Complainant from her position as Head of Finance by replacing that position with the New Role where the two roles were effectively the same.

Both contentions are predicated on the following propositions as articulated by Mr. Twomey in his written submission on behalf of the Complainant:

“The law has long regarded failure on the part of employers to reasonably consider applications for part-time working arrangements by women to constitute indirect discrimination on the gender ground because an inability to work part-time more often has an adverse impact on women. It was against that background that the Code of Practice on Access to Part-Time Work (SI 8/2006, Industrial Relations Act 1990 (Code of Practice on Access to Part-Time Working) (Declaration) Order 2006) was introduced by way of statutory instrument in 2006”

[Emphasis added]

Further on his submission the argument is summarised as follows:

“a. The Respondent indirectly discriminated against the Complainant on the gender ground

by failing to deal with her application to work part-time adequately;

b. Directly discriminated against the Complainant by refusing her application to work part-time whilst granting a similar application from a male colleague; and

c. Failed to comply with the requirements of the Code of Practice.”

In his concluding oral submission Mr Twomey put it thus:

Both the pay issue and the request to work part-time are gender related. The failure to consider the request to switch to part-time work was indirect discrimination. It was also direct discrimination insofar as Mr. O a male colleague of the Complainant was told by Mr. Rhodes that if he wanted to work part-time that wouldn’t be a problem. It was a problem for the Complainant because the response to the request was to replace her.

As regards the male colleague, the evidence established that this individual did not actually apply to work part-time and so the suggestion that such a facility was granted to him and withheld from the Complainant is factually incorrect.

It was not the case that the Complainant’s request for part-time work had actually been refused as such since Mr. Rhodes did state in his email to the Complainant on the 10th of December 2022 that she could work at least until August 2023 and would be paid at her full-time rate even if she only worked part-time. Accordingly, the allegation that the request was refused is also factually incorrect.

As regards the introduction of the New Role, the evidence does establish that although this had been contemplated by the Respondent’s board and was being discussed at that level before the Complainant made her request for part-time work, the request did prompt the Board to resolve to set about implementing the proposal.  There is also evidence to support the contention that the Respondent did not process the Complainant’s request to work part-time in accordance with Code of Practice on Access to Part-Time Working. However, on their face, these issues do not establish facts from which it may be presumed that there has been discrimination on the gender ground as per the Employment Equality Acts as that ground and only that ground is relied upon. The Complainant’s case addresses this issue by making the assertion that issues relating to part-time work requests are analogous with gender issues because the Code of Practice was implemented against a background   where the law has long recognised that an inability to work part-time more often has an adverse impact on women, that  both the pay issue and the request to work part-time are gender related and the failure to consider the request to switch to part-time work is indirect discrimination.

The rationale behind the Code of Practice on Access to Part-time Working, is set out in the preamble to S.I. 8/2006 states as follows:

“Preamble - General Context

The importance of developing access to part-time work as a strategic response to growing demands for modern, flexible work-organisation, has been recognised and highlighted in economic and social policy development at international, EU and national levels. It is widely recognised that widening access to part-time work, in the context of encouraging and promoting the development of a flexible labour market, has positive economic and social benefits for employers and employees. In addition, widening access can have a role to play in facilitating further education and training, increasing participation of older people in the workplace, providing a meaningful option for many people with disabilities and providing work life balance work options generally”

There is no reference in the preamble or in the Code itself to gender.

There are two references to indirect discrimination:

Paragraph 2.2 states

The introduction of a Code of Practice on access to part-time working accords with the principle of minimising the potential for indirect discrimination in relation to part-time working and introduces positive measures to eliminate obstacles and barriers and encourage greater participation in employment on a number of grounds, as set down in the Employment Equality Acts 1998-2004.

Paragraph 10 states:

“Career Opportunities

The Code advocates an approach that aims to identify part-time working opportunities across different levels in an organisation. As best practice it is recommended that organisations review their training, performance appraisal, promotion/career development policies to ensure that there are no career development barriers, direct or indirect, to the progression of part-time workers in the organisation.”

As can be seen the Code does set itself the goal of “minimising the potential for indirect discrimination… on a number of grounds, as set down in the Employment Equality Acts 1998-2004” but this goal is not stated to be limited or specific to gender discrimination and accordingly there is nothing in the Code itself which supports the assertion that “an inability to work part-time more often has an adverse impact on women”.

The concept of indirect discrimination (not related to pay) is provided for in a separate section of the Act.

Section 22 of the Employment Equality Act 1998, as amended, provides: -

“(1) ( a ) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.” 

The definition applies to particular claims made pursuant to this section which require specific proofs including establishing the existence of a provision and proof (statistics are admissible) that such a provision puts persons of a particular gender at a disadvantage compared with other employees. This however is not the claim which the Complainant has made. She does not seek relief under this section but seeks in effect to import the definition contained in Section 22 into a claim invoking other sections of the Act pursuant to which she makes her claim. 

In support of this contention an allegation was made based on the Complainant’s understanding that a male colleague had requested and was granted the facility of working part-time. However, this was clarified in his evidence by that same individual who confirmed that he did not actually request to work part time but merely enquired of Mr. Rhodes as to whether he would be allowed to do so if the situation arose. The Complainant’s solicitor said that Mr. Rhodes reaction to this request was different to his reaction to the Complainant’s request. However, I do not accept this argument for two reasons: firstly, because the male colleague made an enquiry which he never pursued in the form of a request and thus the situations are not analogous at all and secondly, I cannot see a significant difference between Mr. Rhodes response to that colleague’s hypothetical enquiry and the one which he gave the Complainant. Either way, this individual is not a comparator in relation to the issue of discrimination whether direct or indirect.

Even if what occurred could be construed as a “provision” within the meaning of Section 22, apart from a mere assertion that women are more likely to be affected by issues relating to requests for part-time work, no other evidence was presented  to establish that the “provision” (in this case the handling of the request for part-time work and the subsequent related introduction of the New Role) placed the Complainant, as a woman, at a disadvantage when compared to another employee of the opposite gender. Accordingly, I find that the circumstances as contended for do not meet the definition of indirect discrimination on grounds of gender.

Specific Instances of Discrimination

The Complainant’s Exclusion from Dinners Held After Board Meetings

The Complainant said that routinely following the conclusion of board meetings, everyone but the Complainant would go to dinner. The party would usually include: Mr. Rhodes (who - though not a member - attended all meetings ex offico as C.E.O.) together with Mr. Foy, Mr. Novak and Mr. O’Reilly (all of whom who were board members) but on occasion, other non-board members attended - all of whom were men. The Complainant recalled asking Mr. Rhodes on one occasion “What’s the story with the boys going out to dinner” but she said that Mr. Rhodes just brushed the question off on the basis that it was only board members.

Mr. Rodes said that these dinners were in effect continuations of the Board Meetings and that those others who went along were involved in developing the business strategy and that there was no need for the Complainant to attend as no finance issues were to be discussed. Mr. Rhodes recalled the Complainant discussing the issue with him, but he did not brush the issue aside. He did say to the Complainant that she should not worry about it. The Complainant accepted that there was no mention of this issue in the Grievance Letter, but she said that just wanted to make the Adjudicator aware of the situation. In his own evidence Mr. Rhodes said that the individuals who went out to dinner after Board meeting were all involved in the strategy aspect of the business which did not involve finance. He disagreed that finance was relevant to strategy.

Finding

It was not asserted that the Complainant had a contractual right to be included in these dinners which took place after the board meetings. The Complainant’s argument was to the effect that the dinners were not restricted to board-members and those non-board-members who actually attended were men. The Complainant contended that these were facts from which gender discrimination against her could reasonably be inferred. The Respondent’s evidence was that the non-board members who attended were consultants who were involved in strategic planning which did not involve the Finance Department and it was for this reason rather than their gender that they were occasionally invited to dinner after the formal board meetings and the Complainant was not. I find that this was a legitimate reason not to invite the Complainant. Although it was contended that finance is relevant to strategy there was no suggestion that any non-board member who attended were not involved in strategy. I also note that this issue was not included in the Grievance Letter. Based on all the evidence and submissions on this issue, I find that the facts relied upon by the Complainant do not support the inference contended for.

I find that the Respondent did not discriminate against the Complainant with regard to this issue nor does it constitute adverse treatment such as to ground a claim for victimisation [as to which - see specific findings below under the heading “The Victimisation Claims”].

The Complainant Being Asked to Order Wine at a Company Dinner

In October 2022 a social event, a dinner out in a restaurant, was organised for the Board Members and Consultants and including the Complainant. During the meal the Complainant rose from her seat to go to the bathroom. She said that while she was making her way, Mr. Rhodes pointed at the wine and said, “we have no red wine”. The Complainant replied, “I’m not a waitress”. She said that she thought something else was off. She said that she felt like a waitress.

Mr. Rhodes said that he thought that the Complainant was in possession of the Company Credit card which was to be used to pay for the meal and this was the reason why he asked the Complainant to order more wine. The Complainant said that she originally had the card but that she later gave it to Mr. Rhodes’ personal assistant, and it was she who had it when the Complainant was asked to order more wine. However, she did not tell Mr. Rhodes that this was so when the request was made of her to order more wine. Later, the meal was paid for by Mr. Rhodes’ Personal assistant who used the card which the Complainant had given her.

The Complainant also said that Mr. Rhodes too had a credit card issued to him by the company, but Mr. Rhodes said that this card was only for personal expenses and was dollar rather than euro based.

The Complainant accepted that this incident was not mentioned in the Grievance Letter and was mentioned for the first time at the hearing.

Mr. Rhodes in his evidence, said that the dinner followed the board meeting. The meal was to be paid for using the Company Credit Card which was generally held by the Complainant. This card was euro based and was generally used for euro expenditure in Ireland which he, as C.E.O would routinely authorise. He did ask the Complainant to order more wine and he recalled saying that he would authorise it. The request had nothing to do with the Complainant’s gender. He would have made the same request of a man if that man had been in possession of the Company Credit Card. In cross- examination Mr. Rhodes denied that the avoidance of Irish credit card charges was just an excuse and he denied treating the Complainant like a waitress.  

Finding

I am satisfied that there is no evidential basis for the Complainant’s allegation of gender discrimination against Mr. Rhodes apart from the Complainant’s subjective reaction to his request. The issue was not raised in the Grievance Letter which is difficult to understand. I am satisfied that Mr. Rhodes made the request of the Complainant on the understanding that she was in possession of the Company Credit Card. The fact that the Complainant never told Mr. Rhodes that she was not, is unfortunate, and it seems to me that had she done so, Mr. Rhodes would then have made the request to whomsoever was in possession of the Company Credit Card, regardless of that person’s gender.

This incident (if such it was) was the only allegation of gender discrimination which the Complainant made personally against Mr. Rhodes and there is no evidence to support any suggestion or implication that Mr. Rhodes had a discriminatory disposition against the Complainant in his dealings with her.

I find that the facts relied upon by the Complainant do not support the inference of gender discrimination contended for nor is there evidence that this incident constitutes adverse treatment such as to support a claim for victimisation [As to which see below under heading “The Victimisation Claim”]

The Complainant’s Exclusion from Certain Board Meetings

The Complainant was never a member of the Respondent’s board of directors. However, she consistently attended meetings from October 2019 where she presented financial reports to the board. She was the only woman who attended the meetings.

It was agreed that the Complainant was not invited to participate in two board meetings which took place in July and October 2022. On the first of these occasions the Complainant was on holidays although she said that she was willing to and would have been able to attend remotely. On the second occasion she was not invited to attend but other individuals who were not board members did attend.

On both occasions Mr. Rhodes presented the financial information which the Complainant would otherwise have presented.

Finding

It was not asserted that the Complainant had a contractual entitlement or any form of necessary ex officio right to attend Board meetings but rather that this was the practice that had developed. The Complainant was not a member of the Board and did not have the right to vote. He role, when she attended by invitation, was limited to providing reports and information within her sphere of responsibility, i.e. finance. I find that as the Complainant did not have the right to attend board meetings and it follows that the failure by the Board to invite her to the meetings in July and October 2022 cannot reasonably be seen as adverse treatment. In short, I find that the Board had the right to invite the Complainant or not and that she did not have the right to be invited. There then remains the question as to whether the failure to invite the Complainant in July and October of 2022 is a fact giving rise to a presumption of gender discrimination. My finding is that it does not and even if it did, on the basis of the evidence which I heard, I accept that there were legitimate reasons not related to gender for the Board’s decision not to include the Complainant. In July 2022 she was on holidays. In October 2022 the New Role was to be discussed and the Complainant would have been asked to leave if she had been present.  In addition, given that Mr. Rhodes, the Respondent’s C.E.O., had been briefed and was in a position to present the relevant financial information, there was no necessity for the Complainant to attend  - or put another way -  there were legitimate reasons for not inviting her which were unrelated to her gender.

In summary I find that the facts relied upon by the Complainant do not support the inference of gender discrimination contended for nor is there evidence that this incident constitutes adverse treatment such as to support a claim for victimisation [As to which see below under heading “The Victimisation Claim”]

The Victimisation Claim

Applicable Statutory Provision

Section 74 subsection (2) of the Acts defines victimisation as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of Section 74 (2). 

The term ‘adverse treatment’ is not defined in the Employment Equality Acts. Although there is no express mention of motivation or intention in the section, the Labour Court in the case of ESB International v MumtazEDA1935,has indicated that the process of assessing liability under this provision “involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent”. As to what has been held to constitute adverse treatment, a review of the decisions made where adverse treatment has been found to have taken place reveals a common theme where the impugned conduct involved the taking of a positive detrimental act by the employer.  Such conduct has included the unilateral alteration of terms of employment, an alteration to the location of employment, the withdrawal or curtailment of benefits, the making of detrimental remarks or comments about the employee or unfairly questioning his/her qualifications or, in extreme cases, dismissing the employee.

There are two central planks to the victimisation claim. The first is that the Respondent harboured a residual resentment towards the Complainant arising from her salary increase complaint in 2021. The second is if the adverse treatment of the Complainant was a result of her request to work part-time, then that adverse treatment is itself indirectly discriminatory.

That salary increase complaint was made in 2021 and following a review of the complaint by the Respondent with the assistance of an external consultancy firm, the Complainant’s pay was rectified and backdated to her satisfaction all within 2021. The Complainant accepted that there was no further issue or complaint whether relating to gender or any other issue until at least six months later or so which takes the time up to July 2022.

To establish liability for victimisation under Section 74 three elements must be proven: 

1. There must be a situation that comes within Section 74 subsection (2) paragraphs (a) to (g) - also known as a “Protected Act”.

[In the present case the Protected Act was a complaint of discrimination in relation to pay and/or a request to work part-time.]

2. There must be “adverse treatment”.

3. That adverse treatment must occur “as a reaction to” the Protected Act.

In the present case there is no doubt that there was a complaint in relation to discrimination in awarding salary increases. There is also no doubt that a request to work part-time was made. As regards adverse treatment it was contended that the manner in which the Complainant’s job was advertised by way of the New Role was adverse treatment. If that was adverse treatment, there must be evidence that such occurred “as a reaction” to the Complaint. I find that that evidence points to the causation of this treatment as being linked at least in part to the Complainant’s request to work part time rather than as a reaction of any sort to her original pay discrimination complaint and thus I find that the adverse treatment complained of did not occur as a reaction to the complaint made in 2021 by the Complainant regarding her pay. However, the Complainant’s solicitor also contended that if the adverse treatment of the Complainant was a result of her request to work part-time, then that adverse treatment is itself indirectly discriminatory since, the argument went, more women than men apply to work part-time and thus any adverse treatment connected with the request to switch to part-time work is indirect gender discrimination. I have dealt with a similar argument in relation to the discrimination claim above and the same finding applies in relation to the victimisation claim. As I have already found there is insufficient factual evidence to establish indirect discrimination within the meaning of that term in Section 22.

As regards the incidents dealt with above with regard to the discrimination claim, namely: the Complainant’s exclusion from dinners held after Board meetings, the Complainant being asked to order wine at a company dinner and, the Complainant’s exclusion from certain Board meetings I have already found that these incidents do not meet the threshold to establish discrimination. Insofar as those incidents were also relied upon to ground the application for victimisation I find that what actually occurred in the circumstances of these incidences cannot in all of the circumstances constitute “adverse treatment” as required by Section 74. 

For the above reasons I find that the claim for victimisation has not been established.

Overall Conclusion

Having made individual findings where possible in relation to the various allegations made and having found that none of them separately constitutes discrimination or victimisation I would add that I have also considered the totality of the allegations taken together and in the light of the evidence when viewed in its full context, I find that the facts relied upon do not support the inference of discrimination or victimisation contended for by the Complainant

The Complainant’s claim for constructive discriminatory dismissal is not upheld.

The Respondent did not discriminate against the Complainant.

The Respondent did not victimise the Complainant.

Employment Equality Acts 1998-2015 – Sections (2) (6), (8), (22), (74), (85A) – Constructive Discriminatory Dismissal – Whether resignation premature – reasonableness = Discrimination – Gender – Burden of Proof - Teresa Mitchell v Southern Health Board (Cork University Hospital) – Hallinan v. Moy Valley ResourcesDEC-S2008-025 - Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 - Cork City Council v. McCarthy, Labour Court, EDA0821 - Dyflin Publications Ltd. v. Spasic EDA0823 - Madarassy v Nomura International plc, [2007] IRLR 246 - Complaint of Discrimination re Salary Increase - Request For Part-time Work - Code of Practice on Access to Part-Time Work (SI 8/2006, Industrial Relations Act 1990 (Code of Practice on Access to Part-Time Working)(Declaration) Order 2006 – whether complied with – Victimisation – ESB International v MumtazEDA1935 – Protected Act  - “Adverse Treatment” – Causation – whether adverse treatment “as a reaction to”   Protected Act - Indirect Discrimination